State v. Johnson

954 P.2d 79 (1998)

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Nature of the Case

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Facts

Steve Haddox and D, along with Matt Neel and others, were at a party at an apartment complex. A friend told Haddox and D that someone was breaking into Neel's Suzuki automobile. They went to the parking lot of the apartment complex and saw Abel Gallegos run from the Suzuki, get into a waiting car, and start to speed off. The window of the Suzuki had been broken, and the car stereo was missing. Haddox and D each produced handguns and fired eleven shots at the car, fatally wounding Abel Gallegos. Haddox and D returned to the party, and Haddox told people there that he may have hit someone. Two officers heard shots and saw the Gallegos car speeding away with its lights off. The officers stopped the car and found Gallegos shot through the heart. Another bullet was also found lodged in the car. No weapons were found in the car or on any of the occupants. The officers questioned Haddox and D, who admitted to the shooting and gave their weapons to the police. Neither asserted that he had acted in self-defense. The bullet that killed Gallegos was fired from D's gun. The bullet found lodged in the car was from Haddox's gun. They were charged with second-degree murder and each entered pleas of guilty to the lesser included offense of involuntary manslaughter. They reserved the right to appeal the court's refusal to give a justifiable homicide instruction, which would have permitted the jury to find that the death of Abel Gallegos was justified if they were attempting to make a citizen's arrest of a fleeing felon. Haddox dismissed his appeal. D continued his appeal.